Best Practices in Fair Use - a couple of thoughts

Earlier this week, the Association of Research Libraries released a new document called the Code of Best Practices in Fair Use for Academic and Research Libraries. The document is the result of a multi-year process of interviews and focus groups with librarians and others involved in library work and management, and aims to outline some common situations where many in the library community agree fair use can apply.

Full disclosure: I participated in this project at both the interview and focus group stages. Here are some of my general thoughts on the result:

"Best Practices" vs. "Guidelines"

I really like the community-based best practices approach to talking about fair use, even though it leaves a number of things somewhat uncertain. There is simply no way to provide certainty about fair use that doesn't involve drawing lines far inside the boundaries of what fair use actually allows. And in most situations, guidelines that aim to provide certainty also overstate the bounds of fair use - "30 seconds of video is always okay, more than that is never okay" is terrible information about fair use of video in any context.

Developed with input from members of specific communities of users, these Best Practices documents articulate specific points of fair use that are of high interest to the community in question - where some idea of how to approach the problem would be particularly helpful for community members who are not well-versed in copyright concerns. But the Best Practices documents do not purport to address points (even of high community interest) where informed people don't also largely agree on principles. As the document explicitly states, "[t]he groups also talked about other issues; on some, there seemed not to be a consensus, and group members found others to be less urgent." And those issues are not included in the Best Practices.

I was fascinated to read the Code of Best Practices in Fair Use for Poetry last year, because it articulated several fair use situations I had never considered before, but which were obviously of high interest to people in that community. If I were trying to figure out what the contours of fair use were for poetry readings, I would definitely want to know how things usually work in similar situations. Courts look to common practices to inform the "fairness" and "appropriateness" parts of fair use. Following community norms is not going to save anyone where the community norms are completely out of alignment with the law, but where community norms track reasonably well with legal considerations, they are often considered relevant by courts. As the document points out, "There are very few [fair use] cases specifically involving libraries," so community practices are one of a very few forms of guidance available.

It is difficult to make progress across the uncertain and unlighted landscape of fair use. The bright-line/guidelines approach strongly illuminates a single, supposedly safe path - but leaves travelers entirely unenlightened about the dark areas that comprise the vast majority of the landscape. The Best Practices approach helps us become more aware of the fair use landscape as a whole, and it helps us know where other travelers similar to ourselves have gone and may be going.

"It's totally biased! They didn't consult any copyright owners!"

It's true, they didn't. But this criticism seems wrong-headed on a couple of counts: first, it suggests is that most people who want to understand what fair uses they can make are trying to put one over on copyright owners - but in the cycles of human culture, almost every one of us is both a user and a creator of copyrightable works. There may be opposing sides in copyright discussions, but the idea that the opposing sides of copyright are creators and users is a damaging fiction.

When librarians bring this criticism against a code developed by library organizations, in deep consultation with a large number of library and legal professionals, I'm stymied. Do they think that our entire profession somehow wants to put one over on the creators of all the works we lovingly maintain and make available to the world?

When this criticism comes from major corporate content owners or representatives thereof, I absolutely understand their point. They do have interests in controlling the uses of their work. But (as much as I am loath to bring physical property analogies into the world of intellectual property) I'd offer this comparison: if there is a public easement - a public-right-of-way - over a piece of land, it would be extremely irrational to rely on a land owner to remember the boundaries of a public easement. And if the land owner got to charge money automatically anytime someone stepped outside of the easement (as with copyright's statutory damages), the land owner's incentive to narrow the easement over time would be very very high.

The Eight Principles

There are the eight Principles outlined in the Best Practices document. Each Principle is accompanied by a much more detailed Description of the
kinds of situations where it might be relevant, Limitations that must
be considered before a use could possibly be fair, and Enhancements that
might strengthen fair use arguments. All of that material should be
consulted in detail to really understand any of these Principles.
Moreover, ARL and the authors have provided an excellent collection of accompanying materials for better understanding, including FAQs (for librarians, for professors, for students), videos, explanations of this unique approach to understanding fair use, and quite a bit more. Go get yourself more educated! I sure plan to!)

Here are the principles:

It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.

It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.

It is fair use to make digital copies of collection items that are likely to deteriorate or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.

It is fair use to create digital versions of a library's special collections and archives and to make these versions electronically accessible in appropriate contexts.

When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.

It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use.

It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.

It is fair use to create topically based collections of websites and other materials from the Internet and to make them available for scholarly use.

It is unfortunate that principle number 5, that it's fair use to make things available to people with
disabilities, even needs to be
articulated. It is incredibly frustrating that there is a constant need to make this
kind of fair use (i.e., that most content is not made available in
accessible formats as a matter of course.) And it is utterly shameful that there are organizations and
individuals out there who, right now, actively fight against copyright and DRM exceptions for people
with print disabilities.

Otherwise, I don't think it's all that important or helpful to talk about the details of each principle from a general perspective. The details only really make sense in
relation to an actual library's actual use concerns.

In a few places, a Principle seems a bit more vague than is
entirely helpful - but I found the accompanying Limitations and Enhancements helped me understand what they were
getting at. The Limitations, in particular, are extremely helpful in understanding the finer legal considerations underlying of each of the Principles.

Overall, the principles seem like reasonable articulations of fair use practices, and are helpfully on point to activities that are increasingly common in libraries. Several of the principles strike me as blindingly obvious applications of fair use in almost any library situation, although I know some institutions have avoided taking full advantage of fair use rights due to uncertainty or a more risk-avoidant institutional mindset.

The specific facts are of course still the real determinants of whether a particular use is fair, and of whether and how an institution chooses to tolerate the uncertainty that is necessarily concomitant with a fair use justification for any activities. But the Best Practices document gives the library community a great jumping-off point for deeper examinations of many of our common copyright use situations, and are a great contribution to the toolbox of anyone dealing with copyright issues, in libraries and beyond.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.